Nottingham v Maltese Cat Limited - [2021] NZSC 36

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 47/2021
[2021] NZSC 36

BETWEEN	KIM DOTCOM Applicant
AND	UNITED STATES OF AMERICA First Respondent DISTRICT COURT AT NORTH SHORE Second Respondent

Court:	Winkelmann CJ, O’Regan and Ellen France JJ
Counsel:	R M Mansfield and S L Cogan for Applicant D J Boldt, F R J Sinclair and Z A Fuhr for Respondents
Judgment:	4 May 2021

JUDGMENT OF THE COURT

AThe application for an order that, pending determination of the applicant’s application for leave to appeal to this Court, the hearing in the Court of Appeal on 6 May 2021 be adjourned until after the determination of the application for leave to appeal (and the appeal, if leave is granted) is dismissed.
BThere is no order as to costs.

____________________________________________________________________

REASONS

In its judgment of 4 November 2020, this Court allowed the appeal of the applicant and his co‑appellants in relation to their applications for judicial review of the District Court decision finding them eligible for surrender to the United States of America.[1]
[1]Ortmann v United States of America [2020] NZSC 120.
In its subsequent judgment of 22 February 2021, this Court remitted the proceedings to the Court of Appeal for the identification of the outstanding issues in relation to the judicial review appeals and the resolution of those issues.[2]
[2]Ortmann v United States of America [2021] NZSC 9.
The Court of Appeal panel dealing with the remitted appeals is the same panel as that which dealt with the appeals of the applicant and his co-appellants when they first came to that Court (Kós P, French and Miller JJ).[3] On 3 March 2021, the applicant applied to the Court of Appeal for the panel to recuse itself from hearing the remitted proceedings. By a minute dated 15 March 2021, that application was dealt with as follows:[4]
The request by the appellants that the panel recuse itself is declined. Full reasons will be given in due course in our substantive decision on the remitted appeals.
[3]See the earlier Court of Appeal judgment which dealt with the judicial review appeals in Ortmann v United States of America [2018] NZCA 233, [2018] 3 NZLR 475.
[4]Ortmann v United States of America CA302/2015, 15 March 2021 (Kós P) at [3].
The applicant then filed a memorandum in the Court of Appeal dated 6 April 2021, in which he requested the panel give its reasons for declining to recuse itself prior to the substantive hearing. In a minute dated 12 April 2021, the Court of Appeal dealt with a number of other issues raised by the applicant and his co‑appellants, but did not specifically address the request for the giving of reasons on the recusal application to be accelerated.[5]
[5]Ortmann v United States of America CA302/2015, 12 April 2021 (Kós P).
The hearing of the remitted appeals is set down for 6 May 2021. That fixture was set by the Court of Appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZSC 36
Decision Date: 4 May 2021

CaseChat Overview and Summary

In the case of Nottingham v Maltese Cat Limited, the applicant sought an order to adjourn a hearing in the Court of Appeal, pending the determination of his application for leave to appeal to the Supreme Court. The legal issues in this case involved the timing and necessity of such an order, given the applicant's desire to challenge the Court of Appeal panel's refusal to recuse itself from hearing the remitted appeals. The applicant argued that a delay in addressing his recusal application could result in a substantial miscarriage of justice, as he would be deprived of a right of appeal regarding the composition of the Court of Appeal panel until after the remitted appeals had been heard and determined.

The Supreme Court considered the relevant provisions of the Senior Courts Act 2016, which required the Court to be satisfied that it was necessary in the interests of justice for the Court to hear and determine the proposed appeal both before and after the Court of Appeal hearing. The Court also examined the applicant's arguments that a matter of general or public importance had arisen, as the provision of reasoned judgments was crucial to maintaining public confidence in the judiciary. However, the Court concluded that the interests of justice did not require the making of an order in the form sought by the applicant. The application for such an order was therefore dismissed, and no order for costs was made.

Orders